Summary: Mrs X complained the Council failed to provide her daughter C, with education as set out in her Education, Health and Care Plan and failed to provide alternative education when C was out of school. Mrs X also says the Council failed to effectively monitor whether the school was delivering the correct educational provision. The Council was at fault for failing to provide C with alternative education. This caused C to miss her entitled provision and caused Mrs X distress and put her to the time and trouble of complaining. We do not find the Council at fault for failing to deliver C’s provision when she was at school or for how it monitored C’s provision. The Council has accepted our recommendations to remedy the injustice caused.

The complaint

1. Mrs X complains the Council failed to provide her daughter, C, with education as set out in her EHC Plan. Mrs X also says the Council failed to effectively monitor whether the school was delivering the correct educational provision, and says the Council failed to provide alternative provision when C was out of school.
2. Mrs X said this has caused C to miss out on her entitled provision. Mrs X says this has also caused her distress and put her to the time and trouble of complaining.

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What I have and have not investigated

3. I have not investigated any action carried out by the school. This is because we do not have jurisdiction over the internal management of schools.
4. I have not investigated any issues relating to C’s exclusion. Mrs X has appealed to the first tier SEND tribunal about this issue; therefore, this matter is outside of the Ombudsman’s jurisdiction.

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The Ombudsman’s role and powers

5. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
6. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)
7. We cannot investigate complaints about what happens in schools unless it relates to special educational needs, when the schools are acting on behalf of the council to secure educational provision as set out in Section F of the young person’s Education, Health, and Care Plan.
8. The First-tier Tribunal (Special Educational Needs and Disability) considers appeals against council decisions regarding special educational needs. We refer to it as the SEND Tribunal in this decision statement.
9. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.

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How I considered this complaint

10. I have spoken with Mrs X and considered the documentation provided in support of her complaint. I have also made enquiries with the Council and have considered all evidence submitted.
11. Mrs X and the Council had an opportunity to comment on this draft decision. I considered any comments received before making a final decision.

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What I found

Legislation and Guidance

Education, Health, and Care Plans (EHC Plans)

12. A child with special educational needs may have an EHCP. This sets out the child’s needs and arrangements for meeting them.
13. Councils have a duty to arrange the special educational provision set out in an EHC Plan. (Children and Families Act 2014 section 42)
14. The Council is responsible for securing the specified special educational provision for the child. This means making sure that arrangements specified in the EHC Plan are put in place. We can look at complaints about this, such as where support set out in the EHC Plan has not been provided, or where there have been delays in the process.

Alternative Provision

15. The Council has a duty to make alternative provision when a child is not able to go to school because of ill-health, exclusion from school or otherwise and where suitable education is not being provided by the school. Councils should ensure the child receives a suitable education as soon it is clear they will be away from school for 15 days or more.
16. A suitable education should consider the age and aptitude of the child and should include teaching by a teacher through online, group or one-to-one provision.

Children Missing in Education – Statutory Guidance for local authorities

17. This states that Councils must provide suitable full-time education for excluded pupils from the sixth day of exclusion.
18. Children missing education are children of compulsory age who are not registered pupils at a school and are not receiving suitable education otherwise than at a school.
19. The local authority should consult the parents of the child while establishing whether the child is receiving suitable education. Those children identified as not receiving suitable education should be returned to full time education either at a school or in alternative provision. Prompt action and early intervention are crucial to discharging this duty effectively and in ensuring that children are safe and receiving a suitable education.
20. Children with EHC plans or statements of special educational needs (SEN) can be home educated. Where the EHC Plan or statement sets out SEN provision that the child should receive at home, the local authority is under a duty to arrange that provision. Where the EHC Plan or statement names a school or type of school as the place where the child should receive his or her education the parent chooses to home educate their child, the local authority must assure itself that the provision being made by the parent is suitable. In such cases, the local authority must review the plan or statement annually to assure itself that the provision set out in it continues to be appropriate that the child’s SEN continue to be met.

What happened

21. I have set out a summary of the key events below. It is not meant to show everything that happened.
22. The Council maintains an EHC Plan for Ms X’s daughter, C. C has a diagnosis of Autistic Spectrum Disorder (ASD).
23. The Council completed C’s annual review on 2 November 2021. The Council said it checked C’s progress towards her outcomes in the EHC Plan and noted there were concerns she was not settling into her new placement.
24. A few days later the Council received a copy of C’s Occupational Therapy referral from the school.
25. The Council told Mrs X of its decision to amend C’s EHC Plan on 17 November 2021. It said this was to reflect C’s key stage transition to Year 7 and ensured the provision provided was specific.
26. It supplied Mrs X with C’s draft amended EHC Plan on 7 January 2022.
27. C’s school responded to the Council and said it would be C’s named school.
28. Mrs X said she contacted C’s school in February 2022 to raise her concerns regarding a pattern of incidents that were triggering for C.
29. The Council said between January and April 2022 it was in regular contact with C’s school. It said it held discussions about C’s specific provision and her EHC Plan.
30. C was suspended from school on 7 April 2022. Mrs X noted there had been previous suspensions, however, these had been for shorter periods.
31. Mrs X contacted the Council on 21 April 2022. She supplied the Council with a complaint letter she had sent to C’s school. Mrs X raised concerns C’s school was not delivering the provision as set out in C’s EHC Plan. Mrs X said she believed C’s suspension could have been avoided had she been given suitable provision.
32. The Council said it spoke with Mrs X who said she was not looking to change C’s school placement.
33. The Council conducted a further Annual Review on 27 April 2022. Mrs X attended along with C’s SENCO, C’s headteacher and representatives from various agencies. The Annual Review said C was making good academic progress, but noted she was academically able to access mainstream curriculums and was not being academically challenged by some subjects.
34. Following the Annual Review, the Council told Mrs X it had decided to make further amendments to C’s EHC Plan.
35. On 10 May 2022, Mrs X was informed C had been permanently excluded from school. C’s SENCO also informed the Council of C’s exclusion.
36. The Council amended C’s EHC Plan on 13 May 2022 and shared this with Mrs X.
37. A few days later the Council held a meeting with another school, however, the school was unable to meet C’s needs. Mrs X said she did not believe the alternative school was appropriate to meet C’s needs and discussed Education other than at School (EOTAS) with C’s Education Welfare officer (EWO).
38. Mrs X complained to the Council on 23 May 2022. She said the Council had failed to provide adequate provision for her daughter within a specialist educational setting over six to seven months.
39. The Council responded to Mrs X but said the complaint was for C’s school to consider, however, it shared Mrs X’s concerns with its SEND and inclusion teams.
40. Mrs X told the Council she also wanted to complain about its actions. She said it had failed to ensure C had received her entitled provision as set out in her EHC Plan. Mrs X asked the Council to investigate its due diligence into setting up new provision and said she wanted the Council to show her that staff were suitably trained to support C’s needs.
41. Following the meeting, the Council’s notes said it agreed a series of actions these were:

• Mrs X would provide a letter from C’s G.P so EOTAS provision could take place.
• C’s EWO suggested C should remain on the roll with her current named school.
• The Council would begin looking to source alternative provision.

42. The Council said it consulted with various schools to identify one that could meet C’s needs.
43. Mrs X attended the appeals meeting about C’s exclusion on 7 June 2022. C’s school upheld the permanent exclusion.
44. The Council said it carried out a quality assurance visit to C’s school in the summer of 2022. It said this enabled it to monitor efficiency.
45. The Council’s notes show C was on a single school roll on 29 June 2022.
46. The Council said it continued its consultations with other schools.
47. In September 2022 Mrs X told the Council C had not received suitable education since May 2022. She said EOTAS had been requested but C’s school had asked for C’s GP to send the referral letter again. The Council said it would contact an alternative school and provide Mrs X with an update.
48. The Council emailed C’s school in October 2022 to check on the progress of C’s EOTAS.
49. The Council noted it had several offers for C including personalised provision, however, C was unable to access these.
50. Mrs X appealed C’s permanent exclusion to the SEND tribunal.
51. The Council responded to Mrs X’s complaint at Stage One of its complaint process in October 2022. This said:

• C’s school could meet her needs and deliver the provision within the EHC Plan.
• It was inconclusive if C’s school delivered the provision day-to-day.
• C’s school had access to the Council’s system allowing it to view her current EHC Plan. It said it satisfied itself that her provision was being met.
• It recognised Mrs X had not felt listened to, however, it had acted on the recommendations.

52. Members of the Outcomes and Resources Group (ORG) considered the evidence presented and agreed to name a new school on C’s EHC Plan. It asked for collaborative working to ensure provision was in place to meet C’s needs.
53. Mrs X remained dissatisfied with the Council’s Stage One response and asked for the Council to investigate her concerns at Stage Two. She said:

• C was still out of education and there had been no clarity around how the Council had monitored the school’s delivery of the provision.
• C had been excluded from the provision the Council had commissioned.
• The Council had not shown what checks were in place and how it had checked C’s provision as delivered by the school was fit for purpose.

54. The Council issued a further amended EHC Plan naming a new school in early November 2022.
55. The Council held a transition meeting several days later.
56. The Council said it conducted a further two quality assurance visits to C’s named school in November 2022.
57. The Council provided Mrs X with a Stage Two final response in November 2022. This said:

• It upheld its previous decision that it had monitored and delivered the provision as set out in C’s EHC Plan.
• It had now obtained evidence from C’s school to show provision was in place and had been monitored by regular reviews.
• It apologised that personal checks did not investigate whether C’s individual provision had been delivered day-to-day.
• C’s school had access to her EHC Plan and systems were in place to show if schools were not actively monitoring cases. It said due diligence was in place.
• It had visited C’s school twice while she was accessing education.
• It had also conducted a quality assurance visit.
• The school SENCO had met with the Council’s SEND improvement officer.
• It had evidenced provision maps and progress towards outcomes at C’s annual reviews.

• It noted, however, that it had not explained how the Council had monitored C’s school’s delivery of provision and had not gathered evidence from C’s school.
• It would conduct a whole SEND review with C’s school in March 2023.
• It recognised that tighter monitoring for individual pupils could be implemented and looked to learn lessons.

58. Mrs X remained dissatisfied and complained to the Ombudsman in January 2023.

The Council’s response to my enquiries

59. The Council accepts that C did not receive alternative education when she was excluded from school. It has apologised to Mrs X and C and has offered to pay £800 in recognition of the loss of education to C and distress to Mrs X.
60. The Council also said it would complete a whole school review in March 2023. However, it said evidence suggests that the school did engage with other services to support C’s needs. It had checked and was satisfied that staff at C’s school had attended training to support young people with additional needs. The Council had identified areas it needed to improve on to ensure Mrs X’s experience was not repeated.
61. The Council also responded to my further enquiries in September 2023. It said Mrs X had made it aware C was not receiving her entitled provision in mid-April 2022, it said it arranged an emergency annual review just over a week later in response to this

Analysis

62. At the heart of this complaint is a difference of opinion between Mrs X and the Council. Mrs X believes the Council did not adequately monitor C’s named school and was at fault for not delivering the provision as set out in her EHC Plan. The Council disagrees and says it was satisfied C received her required provision as set out in the EHC Plan.

C’s Provision

63. The Council’s Stage One response noted it was ‘unable to conclusively establish through the investigation if the provision was available day to day for C.” However, it noted that it would undertake a whole school review. Its Stage Two response is clearer and notes that a ‘documentation package… showed that provision was in place and was being monitored in regular reviews.”
64. I have also reviewed the Council’s notes and responses alongside Mrs X’s submissions. The Council does not need to keep a watching brief on the school; however, I would expect when issues are bought to its attention that it would intervene. In this case the Council has evidenced it visited C’s school while she was accessing her education and completed quality assurance visits on two occasions looking at overall provision. I agree with the Council’s assessment that ‘tighter monitoring for individual pupils could be implemented.” I am therefore satisfied that the Council did monitor C’s school when it was alerted to Mrs X’s concerns, and I am satisfied that C received the provision as set out in her EHC Plan. Therefore, I do not find the Council at fault.

EOTAS and Alternative Provision

65. The Council was notified of C’s permanent exclusion from her named school on 10 May 2022. The statutory guidance is clear, suitable alternative provision following exclusion should have been in place no later than six days after C was excluded. I have seen no evidence this was put in place. This was fault. I recognise the Council said it was in consultation with other schools and trying to put alternative provision in place. However, C should have been provided with adequate alternative provision in line with the statutory guidance. C was left without any provision following her exclusion in early May 2022 until starting her new school placement in early November 2022 and Mrs X was caused distress and put to the time and trouble of complaining.
66. The Council in its response to my enquiries has apologised and accepted C was without EOTAS and has offered to pay Mrs X £800 for the injustice caused. This goes some way in remedying the injustice identified, but I do not think it goes far enough. Therefore, I have made further recommendations to remedy the injustice caused.

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Agreed action

67. By 20 December 2023, the Council has agreed to:

• Apologise to Mrs X for failing to provide C with a suitable alternative education.
• Pay Mrs X £1,500 (to be used for C’s education) for failing to provide C with a suitable alternative education and EOTAS.
• Pay Mrs X a further £300 for distress and putting her to the time and trouble of complaining.
• Share this decision with staff dealing with SEN and exclusions and remind them to follow the statutory guidance.

68. By 27 January 2024, the Council has agreed to:

• Set out with a clear plan and timetable how it intends to implement tighter monitoring of provision for individual pupils.

69. The Council should provide us with evidence it has complied with the above actions.

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Final decision

70. The Council was at fault for failing to ensure C received suitable alternative education and EOTAS when she was unable to attend school. I have not found the Council at fault for failing to deliver C’s provision or for how it monitored the school’s delivery of C’s provision. I have made recommendations to remedy the injustice to Mrs X.

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Investigator's decision on behalf of the Ombudsman